Default of appearance, default judgment and objection
A party receives a summons
A party that receives a summons is summoned to appear before the relevant judicial body on a certain day – represented by a lawyer or otherwise, depending on the procedure. If the defendant fails to appear on the day for which he was summoned, the court will assess whether the formal requirements for giving notice to appear and appearance have been met.
Default of appearance in case of non-appearance of the defendant
If the court is of the opinion that the defendant has been called in a proper manner, but has failed to appear (or to appear in the correct manner, e.g. not trough a lawyer), the court will declare the defendant to be in default of appearance. The court will also declare the defendant to be in default of appearance if he has not paid the court fee in time. The claim will be allowed against the defendant who was declared in default of appearance, unless this claim appears to be unjustified or unfounded to the court.
What does a default judgment involve?
In practice, the court only tests the judgment for reasonableness to establish if the claim appears to be “unjustified or unfounded”. In practice, far-reaching claims are also (almost) fully allowed in default of appearance. In any case, the defendant cannot rely on the court making an in-depth assessment of the lawfulness and soundness of the claim. If demanded, the (default) judgment is in principle also declared provisionally enforceable. This means that bringing an objection (or an appeal, which may sometimes be necessary) does not suspend the enforcement of the judgment. In most cases, an objection has to be brought instead of an appeal. If an objection is brought in the proper manner, the case will be tried as a defended case before the same body that issued the default judgment. Unlike an appeal, which is dealt with by a different, higher body – the court of appeal.
What are objections proceedings?
Objections proceedings are therefore conducted before the court that gave the default judgment. Objections proceedings commence by means of a summons, though which the defendant who was ruled against by default summons the original claimant. The notice of objection is regarded as a statement of defence (i.e. defence against the claim) and may contain a counterclaim. In fact, the objection reopens the proceedings, of which the substance will now be dealt with.
Lawyer and notice of objection
In cases in which the defendant is unable to litigate in person (pro se), the objection must be brought by a lawyer, who acts as counsel for the appellant against a default judgment (or claimant in opposition) in the notice of objection.
Objection period: short and fatal
The periods for bringing an objection are short. In principle, the period for issuing a notice of objection is four weeks after service of the judgment in person, or after the date on which the person ruled against by default performed an act that shows that he knows the contents of the judgment. These short periods mean that the lawyer of the defendant ruled against by default not only has to draw up the formal notice of objection, but also draw up the formal notice of objection within that notice of objection and formulate the complete defence against the claim brought, within four weeks. This is why it is advisable to consult a lawyer as soon as possible, if you are (accidentally) ruled against by default.
Three different starting times of the objection period
The objection period is a cast-iron period: if the notice of objection is issued even only one day late, the claim of the appellant against the judgment will not be allowed, and the default judgment will become final. The objection can start running at three different times. Besides, the periods may differ, depending on the place of residence of the defendant:
- The notice period commences as aforementioned from the time the default judgment is served in person on the party that is found against. Service on a legal entity is effected by service on the director of that legal entity in person.
- The period also commences from the time the party against whom a judgment has been given has performed an act proving knowledge which shows that he knows the contents of the judgment. This must be an action to the outside world, which demonstrates that the defendant is aware of the contents of the judgment.
- Finally – and this is sometimes forgotten – the objection period commences on the day after the completion of the enforcement (execution) of the judgment. This does not have to be full execution. If for example the creditor finds only limited funds in the bank account that was attached, and the execution of these funds is completed because the bank pays the balance to the bailiff, that execution will be completed and the objection period will have commenced at that moment.
Objection period for a defendant without residence in the Netherlands
The objection period is eight weeks if the defendant did not have a place of residence in the Netherlands at the time of the service or the act proving knowledge, but his place of residence or actual residence outside the Netherlands is known. If the defendant’s place of residence in or outside the Netherlands is unknown, the objection period will only commence on the day of enforcement of the judgment.
Default and objection in case of summons proceedings
The default judgment and the legal remedy of objection only apply for summons proceedings. The legal remedy of objection is unknown for petition proceedings, which sometimes also may result in serious orders for payment, such as maintenance obligations, etc. Though the law does not stipulate that the court will allow the request in petition proceedings, unless it appears to be unjustified or unfounded, in practice this often happens. The only legal remedy available for petition proceedings is an appeal, possibly followed by an appeal in cassation.